Secretary of Labor v. Geneva Rock Products, Inc.

Plain-English summary

MSHA issued four violations after investigating a fatal accident at Geneva Rock's Hansen Pit, and the civil penalty case was stayed while possible individual and criminal investigations remained unresolved. After seven months, the Secretary moved to lift the stay because MSHA would not pursue individual penalties and no criminal indictment was imminent. Geneva Rock said a Justice Department investigation remained active and argued that parallel proceedings could create overlapping evidence, Fifth Amendment issues, and added expense. Judge David Simonton found those concerns speculative, while further delay threatened witness availability, efficient adjudication, and the public interest in prompt penalty decisions. He granted the motion, lifted the stay, and allowed either party to seek renewed relief if an actual criminal proceeding later interfered with the civil case.

Decision snapshot

• Cited authority: 30 U.S.C. §§ 820(c) and 820(d)
• Outcome: The seven-month stay was lifted, and the civil penalty proceeding resumed.
• Key point: A possible criminal investigation did not justify continuing a civil stay without concrete evidence of overlap, imminent charges, or actual prejudice.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

FEDERAL MINE SAFETY AND HEALTH REVIEW
COMMISSION

OFFICE OF ADMINISTRATIVE
LAW JUDGES

721 19 th ST.
SUITE 443

DENVER, CO 80202-2500

TELEPHONE:
303-844-5266 / FAX: 303-844-5268

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH      

ADMINISTRATION (MSHA),

Petitioner,

v.

GENEVA ROCK PRODUCTS, INC.,

Respondent.

CIVIL PENALTY PROCEEDING

Docket No. WEST 2022-0097

A.C. No. 42-02107-545346

Mine: Hansen Pit

ORDER GRANTING
MOTION TO LIFT STAY

Before:             Judge Simonton

This case is before me upon the Secretary’s
petition for the assessment of civil penalty under Section 105(d) of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (“Mine
Act”). It involves four violations issued on April 14, 2021, following MSHA’s
investigation of a fatal accident that occurred on January 19, 2021. This
matter has been stayed for over seven months, and the Secretary has moved to
lift the stay. For the reasons set forth below, the Secretary’s motion is
granted.

I.                   
Procedural Background

This matter was assigned to me on January
10, 2022. On February 9, 2022, Respondent, Geneva Rock Products, Inc. (“Geneva
Rock”), moved to stay this proceeding until the conclusion of any special
investigations conducted by the Secretary pursuant to Sections 110(c) or 110(d)
of the Mine Act, or until the Secretary confirmed there would be no individual
civil penalties or criminal referrals related to this matter. On February 10,
2022, I stayed this matter pending the completion of any possible Section 110(c)
or 110(d) investigations and directed the parties to provide an update in March
2022 confirming whether any such investigations were being conducted.

In March, April, and June 2022, the Secretary
filed “status reports” with the court. In each of these reports, the Secretary
conveyed that he had “no update” on the status of any investigations against
Geneva Rock or its agents.

The Secretary filed a more substantive update in
August 2022. In this status report, counsel for the Secretary stated that she
has no information regarding potentially related investigations involving other
agencies and has no access to such information. The Secretary proposed that the
stay in these proceedings should be lifted, over Geneva Rock’s anticipated objection.

For the first time, in August 2022, Geneva Rock
submitted its own status report. In it, Geneva Rock asserted that a criminal
referral had been made, and that the matter had been assigned to an attorney
from the U.S. Department of Justice, Environmental Crimes Section, and an
attorney from the U.S. Attorney’s Office for the District of Utah. Geneva Rock
stated that an investigation was ongoing, but no formal action had been taken. Accordingly,
Geneva Rock suggested that it would be prejudiced absent a stay and stated it
would oppose a motion to lift the stay.

On August 22, 2022, the Secretary filed a Motion
to Lift Stay of Proceedings (“Sec’y Mot.”). Geneva Rock filed its Opposition to
Secretary’s Motion to Lift Stay of Proceedings on September 2, 2022 (“Geneva
Rock Opp.”).

II.                
Discussion

The Commission has held that judges
should consider the following factors when determining whether a stay is
appropriate in a case like this one, where there is a possibility of a related
criminal prosecution: (1) the commonality of evidence in the civil and criminal
matters; (2) the timing of the stay request; (3) prejudice to the litigants;
(4) the efficient use of agency resources; and (5) the public interest. Buck
Creek Coal Inc. , 17 FMSHRC 500, 503 (Apr. 1995). Consideration of these
factors “involves a balancing test in which the factors are weighed against
each other in order to determine whether the balance favors a stay.” Performance
Coal Co. , 32 FMSHRC 1212, 1215 n.2 (Oct. 2010). No single factor is
dispositive, and the factors must be “weighed against a background of
coordinated and consistent government action between agencies.” Id .

a.       The
Commonality of Evidence in the Criminal and Civil Matters

The Secretary asserts that the
first Buck Creek factor supports lifting the stay. Sec’y Mot. at 4-7. To
support this position, the Secretary points to numerous prior cases in which the
Secretary moved for a stay in cases where parallel criminal matters were
pending. Id. at 4-5. In those cases, the Department of Justice provided
information to the Secretary and requested that the civil matters be stayed
because they were likely to interfere with the criminal investigations or
proceedings. Id . at 4-5. In contrast with those instances, the Secretary
argues, the Department of Justice has not provided him with any information to
support that there is commonality of evidence between this case and a criminal
investigation. Id . at 6. Accordingly, given the lack of information
supporting this factor, the Secretary argues this it weighs in favor of lifting
the stay. Id.

Geneva Rock, on the other hand,
asserts that the first factor strongly weighs in favor of a stay. Geneva Rock
Opp. at 8. Geneva Rock states that the evidence in this civil proceeding and any
potential criminal proceeding “would likely be identical (or at least have
substantial overlap) because those proceedings likely would arise out of the
same underlying, allegedly violative conduct at issue in this matter, or at
least closely related conduct.” Id. Geneva Rock asserts that on April 1,
2022, an attorney at the Department of Justice confirmed that it received a
“referral package of this matter containing a large number of documents from
the Mine Safety and Health Administration.” Id. at 5. According to
Geneva Rock, the Department of Justice confirmed in August that it is still
working through the documents, that the investigation of the referral is
active, and that no decisions have been made regarding potential criminal
charges or the targets of any potential charges. Id. at 5-6. Accordingly,
Geneva Rock argues that the stay of this matter is appropriate and should be
continued, and that the Secretary’s motion should be denied.

I find that the first factor
supports lifting the stay in this matter. Geneva Rock has failed to establish a
nexus between the possible criminal prosecution and this case. Without any concrete
information showing a commonality of evidence and only the recounting of
communications between Geneva Rock and the Department of Justice, Geneva Rock’s
assertion that a potential criminal investigation involves “identical” evidence
is merely an assumption at this juncture. This is an assumption the court is
unwilling to adopt. However, Geneva Rock remains free to move for a renewed
stay if and when any criminal proceeding actually interferes with or is impeded
by this civil penalty proceeding.

b.       The
Timing of the Stay Request

The Secretary further argues that
the second Buck Creek factor also supports lifting the stay. Sec’y Mot.
at 7. Since this case was originally stayed in February, the Secretary decided
not to open any related special investigations and has confirmed he is not
pursuing any individual civil penalties under Sections 110(c) or 110(d) of the
Mine Act. Id. at 3. He further asserts that “the imminence of an
indictment would weigh in favor of limiting discovery or staying proceedings,”
but given the five-year statute of limitations and Geneva Rock’s report that no
formal action has been taken by the Department of Justice, this case should not
be kept on hold based on the possibility of related criminal proceedings. Id.
at 7.

Geneva Rock counters that the
timing of the stay request supports a continuance of the stay. Geneva Rock Opp.
at 9. It asserts that clarity regarding potential criminal charges and the
targets of those charges “should emerge” in the coming weeks. Id.

I agree with the Secretary and find that the
second factor of the Buck Creek test supports lifting the stay. This
matter was stayed over seven months ago, and the Secretary has confirmed
individual civil penalties under Sections 110(c) or 110(d) will not be assessed
for conduct related to the accident at issue in this case. At this time, the
timing factor weighs in favor of lifting the stay; nearly two years have passed
since the accident at issue and indictments are not imminent.

c.        Prejudice
to the Litigants

The Secretary argues that his
“civil penalty case is at risk of substantial prejudice if the stay continues. Sec’y
Mot. at 10. To support this assertion, the Secretary points to the fact that
the lead accident investigator has left his employment with MSHA and relocated
out of state, and that a continued stay makes his availability more difficult. Id.
Additionally, the Secretary notes that 14 Geneva Rock employees are listed in
the Fatal Accident Report as participants in the investigation, and that, as
time passes, the likelihood increases that some witnesses may become
unavailable. Id. at 10-11. The Secretary also argues that Geneva Rock
may dispose of discoverable documents, according to its retention policy or
otherwise. Id. at 11. The Secretary argues that because the risk of
prejudice to his case is “concrete and substantial,” rather than speculative,
the stay should be lifted. Id.

Geneva Rock asserts that it will be
prejudiced in three ways if the stay is not continued. Geneva Rock Opp. at 9. First,
it argues that allowing this case to proceed will force Geneva Rock to address
“overlapping witnesses and evidence against two powerful government opponents
at the same time, potentially placing great financial hardship” on Geneva Rock.
Id. at 9-10. Second, it expects that many necessary witnesses might
assert their Fifth Amendment privileges at depositions or at hearing to
preserve their own interests during the pendency of criminal investigations or
proceedings, which would deprive Geneva Rock of testimony crucial to its
defenses and possibly expose it to adverse inferences in the Secretary’s favor.
Id. at 10. Third, Geneva Rock argues that allowing this case to proceed
will prejudice it by requiring it to “expose the bases of its defenses” to the
prosecution before a criminal trial. Id. at 11. Accordingly, Geneva Rock
concludes that this third factor weighs in favor of extending the stay.

I find that the third Buck Creek
factor favors lifting the stay. While I acknowledge Geneva Rock’s concerns,
its assertion that it will be prejudiced if this case moves forward is little
more than speculation at this point. Geneva Rock assumes that a criminal
proceeding will move forward during the pendency of this case, and that some
unidentified witnesses may refuse to be deposed or to testify at a hearing in
this case for fear that they may be charged in a separate criminal action. However,
Geneva Rock is apparently unable to show that the Department of Justice will be
moving forward with any criminal indictments, let alone criminal indictments
for the conduct at issue in this docket. On the other hand, the Secretary’s
concerns about the continuing passage of time are well taken and shared by the
court. Unlike any potential criminal case, this civil penalty case is currently
pending, and resolving it in accordance with the Commission’s aim to “secure
the just, speedy, and inexpensive determination of all proceedings” is of
utmost importance at this juncture. As the Commission has stated, “a complete
stay of the civil proceedings is by no means the only method by which to avoid
prejudice to a related criminal prosecution.” Buck Creek , 17 FMSHRC at

504. Either party may petition the court for limitations imposed on discovery, or
     as stated above, may move for a renewed stay if a criminal proceeding begins
     and is impeded by this civil proceeding.

d.       The
Efficient Use of Agency Resources

The Secretary attests that the
fourth Buck Creek factor favors lifting the stay. Sec’y Mot. at 11-12. He
argues that he should not be required to wait to enforce civil penalties until
the criminal statute of limitations has run, and that efficient use of agency
resources requires that the Secretary be permitted to pursue a prompt civil
penalty. Id. at 12.

Geneva Rock counters that a
continuation of the stay would promote judicial economy and the efficient use
of agency resources. Geneva Rock Opp. at 11. It speculates that if the
Department of Justice declines to bring criminal charges, the Secretary may
change course and seek individual civil penalties under Sections 110(c) or
110(d) after all, and this scenario would support consolidation of the cases
for discovery, settlement negotiations, and hearing. Id. at 11-12. Additionally,
Geneva Rock posits that allowing the criminal investigation to conclude before
proceeding with this case may present an opportunity for a “‘global settlement’
addressing any criminal charges and agency claims at once, thus avoiding wasted
government efforts in both proceedings. Id. at 12 (citation omitted).

I find this factor favors lifting
the stay. At this time, it is unclear whether there will be a criminal
proceeding and, if so, the extent to which the criminal and civil proceedings
will involve the same witnesses and evidence. It is possible that this factor later
weighs in favor of a stay if either party provides concrete information to support
such a finding. Now, however, the Secretary asserts that moving forward with
this proceeding is the most efficient use of his agency’s resources. Without
any contrary information from the Department of Justice, I find that moving
this proceeding along is the most efficient use of Commission resources as
well.

e.        The
Public Interest

The Secretary asserts that this
fifth factor further supports lifting the stay. Sec’y Mot. at 12-14. He points
to the Secretary’s and the Commission’s responsibilities under the Mine Act,
stressing that it was Congress’ intent to protect the health and safety of
miners through prompt enforcement and swift adjudication of civil penalties. Id.
Waiting for the completion of a criminal investigation and any proceedings
frustrates the public interest in the swift adjudication of civil penalties,
according to the Secretary. Id. at 13-14.

Geneva Rock argues that the public
interest favors continuing the stay until any criminal investigations are
complete. Geneva Rock Opp. at 12. It notes that the Secretary has taken this
position in many other cases, and that courts have found staying civil
proceedings pending parallel criminal proceedings protects the defendant’s
constitutional rights, which is more important than avoiding delay and
inconvenience in the civil case. See id. at 12-13. Geneva Rock asserts
that the public interest in the money damages arising from the civil proceeding
is outweighed by the public interest in the criminal proceeding and the
protection of the defendant’s constitutional rights. Id.

I find that the public interest
supports lifting the stay at this juncture. The Commission has long observed
that “there is a substantial public interest in the expeditious determination
of whether penalties are warranted.” Scotia Coal Mining Co. , 2 FMSHRC
633, 635 (Mar. 1980). This case has been stayed since February, and there is
still no parallel criminal proceeding pending. Accordingly, given the
information available now, I find that the public interest favors lifting the
stay. Again, Geneva Rock may move for a stay at a later date if these
circumstances change.

III.             
Order

Having considered the five Buck
Creek factors, I find that the Secretary’s request to lift the stay in
these proceedings is appropriate, despite the possibility of a related criminal
prosecution. Though I appreciate Geneva Rock’s concerns, its vague, largely assumptive
arguments are insufficient to support continuing this already lengthy stay. Accordingly,
the Secretary’s Motion to Lift Stay of Proceedings is GRANTED and the
stay of WEST 2022-0097 is hereby LIFTED . The parties are directed to
submit their prehearing reports on or before November 7, 2022 .

/s/
David P. Simonton

David P. Simonton

Administrative Law Judge

Distribution: (Electronic and Certified Mail)

Emily O. Roberts, U.S. Department of Labor, Office of the
Solicitor, 201 12 th Street South, Suite 401, Arlington, VA 22202, [email protected]

Jason W. Hardin, Fabian VanCott, 215 S. State Street, Suite
1200, Salt Lake City, UT 84111, [email protected]

Artemis Vamianakis, 215 S. State Street, Suite 1200, Salt
Lake City, UT 84111, [email protected]